State v. Deborah J.Z.
228 Wis. 2d 468, 1999 Wisc. App. LEXIS 581, 596 N.W.2d 490 (1999)
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Rule of Law:
Under Wisconsin criminal statutes, a "human being" is defined as "one who has been born alive," and therefore, the crimes of attempted first-degree intentional homicide and first-degree reckless injury do not apply to prenatal conduct directed at an unborn child.
Facts:
- One week before her due date, Deborah J.Z. was drinking in a local tavern when she believed she was going into labor.
- Deborah's mother came and took her to St. Luke's Hospital for medical treatment.
- At the hospital, Deborah was uncooperative, belligerent, and very intoxicated, with a blood alcohol concentration exceeding 0.30%.
- Deborah allegedly told a nurse that she would "keep drinking and drink myself to death and I'm going to kill this thing because I don't want it anyways," also expressing fear about the baby's race, an abusive relationship, and the pain of giving birth.
- After consulting with her physician, Deborah consented to a cesarean section and gave birth to a baby girl, M.M.Z.
- At birth, M.M.Z. was extremely small, she had no significant subcutaneous fat, her physical features presented fetal alcohol effects, and her blood alcohol level was 0.199%.
- After a few weeks, M.M.Z. was gaining weight, had no significant jaundice, and was able to tolerate temperature outside the incubator, leading to her discharge to a foster family.
Procedural Posture:
- On June 10, 1996, the State filed a criminal complaint against Deborah J.Z. in circuit court (trial court), charging her with attempted first-degree intentional homicide and first-degree reckless injury.
- After a preliminary hearing, the circuit court found probable cause to charge Deborah J.Z. and bound her over for trial.
- The State filed a two-count information, to which Deborah J.Z. pled not guilty.
- Deborah J.Z. brought a motion to dismiss the information, which the circuit court denied.
- Deborah J.Z. petitioned the Wisconsin Court of Appeals (intermediate appellate court) to review the nonfinal order denying her motion to dismiss.
- The Wisconsin Court of Appeals certified the appeal to the Wisconsin Supreme Court (highest court) under Rule 809.61.
- The Wisconsin Supreme Court accepted certification of the appeal.
- The Wisconsin Supreme Court was equally divided on the outcome, vacated its decision to accept certification, and remanded the appeal to the Wisconsin Court of Appeals.
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Issue:
Does a pregnant woman's prenatal conduct, specifically consuming alcohol, constitute attempted first-degree intentional homicide or first-degree reckless injury against her unborn child under Wisconsin statutes that define "human being" as "one who has been born alive"?
Opinions:
Majority - ANDERSON, J.
No, a pregnant woman's prenatal conduct, such as consuming alcohol, does not constitute attempted first-degree intentional homicide or first-degree reckless injury against her unborn child under Wisconsin statutes. The court's primary task was statutory construction to discern legislative intent. It noted that penal statutes are strictly construed in favor of the accused. The relevant statutes, §§ 940.01(1)(a) (first-degree intentional homicide) and 940.23(1)(a) (first-degree reckless injury), both require actions against a "human being." Section 939.22(16) explicitly defines "human being" as "one who has been born alive." This plain language unambiguously excludes an unborn child. The court emphasized that when the legislature intends to protect unborn children, it does so explicitly, as evidenced by 91 other statutory sections, including subsections within the same Chapter 940 (e.g., §§ 940.01(1)(b), 940.23(1)(b)), which specifically mention "unborn child." The omission of "unborn child" from the statutes Deborah was charged under is significant in showing a different legislative intent. The court rejected the State's argument that the definition of "human being" could include an unborn child when the perpetrator is the mother, stating it would produce absurd results. It cited State ex rel. Angela M.W. v. Kruzicki (1997), which similarly held that an unborn child was not a "child" for CHIPS purposes because the legislature had not explicitly included them. The court further noted serious public policy implications, such as deterring pregnant women from seeking prenatal care and substance abuse treatment if such conduct were criminalized, stating these complex issues are best addressed by the legislature. Lastly, it distinguished the common-law "born alive" rule, which applied to third parties causing injury to a fetus that is subsequently born alive (e.g., State v. Cornelius), by reiterating that its decision was based purely on statutory grounds and the explicit definition of "human being."
Analysis:
This case establishes a clear precedent in Wisconsin regarding the interpretation of criminal statutes concerning harm to a "human being" in the context of maternal prenatal conduct. It reinforces the importance of plain statutory language and the strict construction of penal statutes, asserting that courts will not broadly interpret such laws to include unborn children unless the legislature explicitly states so. The decision highlights judicial deference to the legislature on complex public policy issues, particularly those that could have a chilling effect on pregnant women seeking medical care or treatment. This ruling limits the application of general criminal homicide and reckless injury statutes to situations where the victim has been born alive, necessitating specific legislative action if the state intends to criminalize a pregnant woman's actions towards her unborn child.
